Opinion issued August 31, 2026
In The
Court of Appeals
For The
First District of Texas
NO. 01-25-00074-CV
CITY OF HOUSTON, Appellant
V.
KEVIN EULIARTE, Appellee
On Appeal from the 11th District Court
Harris County, Texas
Trial Court Case No. 2022-58127
MEMORANDUM OPINION
This appeal arises from a personal injury suit brought against the City by
Kevin Euliarte after his car was struck by a Houston Police Department (HPD)
officer’s patrol car.
The City of Houston appeals the trial court’s denial of its combined motion
for summary judgment and plea to the jurisdiction, contending that the trial court
erred in determining that Euliarte’s pleadings adequately negated the emergency
exception to the Texas Tort Claims Act (TTCA) and fact issues remained about
whether either the emergency exception or the officer’s official immunity preserved
the City’s governmental immunity.
We affirm.
Background
On October 18, 2021, HPD Officer Roccaforte left the Reisner Street police
station in his patrol vehicle and headed northbound on Houston Avenue. According
to Roccaforte, while stopped at the Washington Avenue intersection, he noticed a
white Porsche turn from Washington Avenue onto Houston Avenue, loudly
accelerate, then speed northbound, driving recklessly and well over the posted speed
limit. Roccaforte turned on his emergency lights and sirens and followed the
Porsche, intending to initiate a traffic stop. After going through the intersection,
Roccaforte left his emergency lights on but turned off his siren.
Just before the next intersection, Officer Roccaforte entered an underpass on
Houston Avenue, which prevented him from seeing the street level on the other side.
Roccaforte proceeded through the underpass at a high rate of speed. He emerged
from the underpass close to the Dart Street intersection just as Euliarte was turning
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right onto Houston Avenue from Dart Street. Roccaforte turned and slammed on the
brakes but still collided with Euliarte’s car. The collision occurred one minute and
seven seconds after Roccaforte left the Washington Avenue intersection.
Euliarte brought suit against the City, alleging that Officer Roccaforte failed
to keep a proper lookout, failed to maintain an assured clear distance, failed to
control his speed, failed to change lanes safely, and collided with Euliarte’s vehicle,
causing Euliarte serious bodily injury.
The City filed a combined summary judgment and plea to the jurisdiction,
asserting three grounds: (1) the TTCA’s motor vehicle waiver1 did not apply because
Officer Roccaforte was shielded by official immunity; (2) alternatively, the
emergency exception applied and thus Houston retained governmental immunity;
and (3) Euliarte’s pleadings did not show a waiver of immunity and thus deprived
the trial court of subject matter jurisdiction. The City relied on an affidavit executed
by Roccaforte to support its motion.
According to the City, Roccaforte was acting within the scope of his authority
and performing a discretionary duty and acting in good faith in pursuing the Porsche
when the collision occurred. After observing the Porsche drive recklessly, he
determined that because it posed an immediate threat to the safety of other drivers,
pedestrians, and property, an immediate response was required. Roccaforte activated
1
See TEX. CIV. PRAC. & REM. CODE § 101.021(1).
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his lights and sirens. He remained on Houston Avenue and did not weave in and out
of traffic and tried to drive as safely as possible under the circumstances.
In asserting that the TTCA’s emergency exception preserved the City’s
immunity, the City asserted that Euliarte failed to allege sufficient facts or raise a
fact issue to negate its application.
After the parties conducted jurisdictional discovery, Euliarte amended his
pleading to address the official immunity and emergency exception claims. Euliarte
alleged that Roccaforte followed the Porsche at twice the speed limit, driving over
69.7 miles per hour in a 35 mile per hour zone, even though he had lost sight of the
Porsche and the underpass prevented him from seeing the road conditions ahead.
And because Roccaforte sped through the underpass with his siren off without
knowing whether traffic was on the other side, a fact issue also existed about whether
any reasonably prudent officer, under the same or similar circumstances, could have
believed that the need to immediately apprehend the suspect outweighed a clear risk
of harm to the public in continuing to search for the Porsche. Further, Euliarte argued
that Roccaforte’s failure to slow down or disengage from the search raised a fact
issue as to whether his conduct was reckless in violation of Transportation Code
section 546.005.
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Governmental Immunity
A. Standard of Review
A plaintiff bears the burden to show the trial court’s subject-matter
jurisdiction. Heckman v. Williamson Cnty., 369 S.W.3d 137, 150 (Tex. 2012). That
burden includes an obligation to show a waiver of sovereign or governmental
immunity in suits against the State and its political subdivisions, including cities.
Town of Shady Shores v. Swanson, 590 S.W.3d 544, 550 (Tex. 2019); see also Ben
Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Tex. Pol. Subdivisions Prop./Cas.
Joint Self-Ins. Fund, 212 S.W.3d 320, 324 (Tex. 2006) (stating that governmental
immunity extends to political subdivisions of State, such as counties, cities, and
school districts). A governmental unit may raise an immunity defense in a summary
judgment motion challenging the trial court's jurisdiction. Town of Shady Shores,
590 S.W.3d at 551; Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).
We review a trial court’s summary judgment ruling de novo. Laverie v.
Wetherbe, 517 S.W.3d 748, 752 (Tex. 2017). To obtain summary judgment on
traditional grounds, the movant must produce evidence showing that no genuine
issue of material fact exists and that it is entitled to judgment as a matter of law. TEX.
R. CIV. P. 166a(c).
When a governmental defendant moves for traditional summary judgment on
the jurisdictional ground of immunity, it “carries the burden to meet the summary
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judgment proof standard for its assertion that the trial court lacks jurisdiction.” City
of Austin v. Powell, 704 S.W.3d 437, 448 (Tex. 2024) (quoting Mission Consol.
Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012)). Likewise, a
defendant who moves for summary judgment on an affirmative defense must
conclusively establish each element of the defense. City of Houston v. Nicolai, 695
S.W.3d 489, 494 (Tex. App.—Houston [1st Dist.] 2024, pet. denied) (en banc) (op.
on reh’g). Evidence is conclusive only if reasonable people could not differ in their
conclusions. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005); Nicolai,
695 S.W.3d at 494. Once the defendant establishes that it is entitled to summary
judgment, the burden shifts to the plaintiff to produce evidence raising a fact issue
concerning a waiver of immunity. See Powell, 704 S.W.3d at 448; Mission Consol.
Indep. Sch. Dist., 372 S.W.3d at 637 (“While a plaintiff must plead the elements of
her statutory cause of action . . . she will only be required to submit evidence if the
defendant presents evidence negating one of those basic facts.”).
In reviewing a summary judgment ruling, we take as true all evidence
favorable to the nonmovant, and we indulge every reasonable inference and resolve
any doubts in the nonmovant’s favor. Powell, 704 S.W.3d at 448 (quoting City of
San Antonio v. Maspero, 640 S.W.3d 523, 528–29 (Tex. 2022)); City of Houston v.
Branch, 695 S.W.3d 580, 586–87 (Tex. App.—Houston [1st Dist.] 2024, pet.
denied) (en banc) (op. on reh’g). We may not, however, disregard necessary
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contextual evidence or “evidence and inferences unfavorable to the [nonmovants] if
reasonable jurors could not.” City of Houston v. Rodriguez, 704 S.W.3d 462, 470
(Tex. 2024) (quoting Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 771
(Tex. 2018)).
B. Governmental Immunity and the Texas Tort Claims Act
As political subdivisions of the State, cities are “immune from suit unless
[their] immunity is waived by state law.” Maspero, 640 S.W.3d at 528, quoted in
Powell, 740 S.W.3d at 448. The TTCA provides a limited waiver of governmental
immunity. See Rattray v. City of Brownsville, 662 S.W.3d 860, 871 (Tex. 2023);
TEX. CIV. PRAC. & REM. CODE § 101.025(a) (“Sovereign immunity to suit is waived
and abolished to the extent of liability created by this chapter.”). Relevant here,
TTCA section 101.021(1) waives immunity for the negligent use or operation of a
motor vehicle. It provides that
[a] governmental unit in the state is liable for:
(1) property damage, personal injury, and death proximately caused
by the wrongful act or omission or the negligence of an employee
acting within his scope of employment if:
(A) the property damage, personal injury, or death arises from
the operation or use of a motor-driven vehicle . . .; and
(B) the employee would be personally liable to the claimant
according to Texas law[.]
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TEX. CIV. PRAC. & REM. CODE § 101.021(1). Under this provision, if official
immunity protects the governmental unit’s employee, then the employee is not
personally liable to the claimant and the governmental unit retains its immunity. Tex.
Dep’t of Public Safety v. Zakir, 665 S.W.3d 884, 891 (Tex. App.—Houston [14th
Dist. 2023, no pet.) (citing DeWitt v. Harris Cnty., 904 S.W.2d 650, 653 (Tex.
1995)).The TTCA also “withdraws” the waiver of immunity in certain instances,
including the emergency exception discussed below. Powell, 704 S.W.3d at 448–49.
C. Analysis
1. Emergency Exception
In its first issue, the City argues Euliarte’s allegations were insufficient to
negate application of the TTCA’s emergency exception. The City also argues it
conclusively established the emergency exception to the waiver of its governmental
immunity.
Under the emergency exception, TTCA’s waiver of immunity
does not apply to a claim arising:
(2) from the action of an employee while responding to an
emergency call or reacting to an emergency situation if the action
is in compliance with the laws and ordinances applicable to
emergency action, or in the absence of such a law or ordinance,
if the action is not taken with conscious indifference or reckless
disregard for the safety of others[.]
TEX. CIV. PRAC. & REM. CODE § 101.055(2).
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Euliarte had the burden to negate the emergency exception in his pleadings
and, in response to the City’s summary judgment motion, by raising a fact issue on
any of its three elements: (1) whether Officer Roccaforte was responding to an
emergency when the accident occurred; (2) whether Roccaforte’s actions complied
with the laws and ordinances applicable to emergency action; and (3) whether
Roccaforte’s actions showed conscious indifference or reckless disregard for the
safety of others. See Maspero, 640 S.W.3d at 529.
When looking at whether there is an applicable law, court considers only laws
applicable to emergency action. Powell, 704 S.W.3d at 451 (“[G]enerally applicable
rules of the road that do not specifically address or reference emergencies are not
applicable to emergency action for purposes of the emergency exception.”). In a
typical emergency vehicle collision like this one, the only law that might apply is
Transportation Code Section 546.005, which says that laws exempting emergency
vehicles from traffic regulations do not relieve the operator of an emergency vehicle
of “the consequences of reckless disregard for the safety of others.” TEX. TRANSP.
CODE § 546.005. As the Supreme Court has noted, if this is the only applicable law,
the analysis required for section 101.055(2) “largely collapses” because “reckless
disregard” is the same standard that would apply if there were no applicable laws.
Maspero, 640 S.W.3d at 529; see Powell, 704 S.W.3d at 455. Thus the analysis for
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this element of the emergency exception is reduced to whether the officer acted
recklessly. Powell, 704 S.W.3d at 455.
Recklessness in this context involves a “wilful or wanton disregard” for the
safety of others. Id. at 456 (quoting TEX. TRANSP. CODE § 545.401(a)). It is “more
than a ‘momentary judgment lapse’ and instead ‘requires a showing that the driver
committed an act he knew or should have known posed a high degree of risk of
serious injury.’” Maspero, 640 S.W.3d at 531 (quoting Perez v. Webb Cnty., 511
S.W.3d 233, 236 (Tex. App.—San Antonio 2015, pet. denied)).
a. Pleading sufficiency
Euliarte specifically alleged that “Officer Roccaforte was not responding to
an emergency call or situation” because he did not “know the whereabouts” of the
suspect and was “aimlessly” searching the area. This allegation goes to the first
element. As to the second element, the City observes that Euliarte also alleged that
Roccaforte did not comply with various provisions of the Transportation Code, but
the City fails to acknowledge that Euliarte expressly invoked section 546.005, which
“largely corresponds” to the recklessness prong of the TTCA’s emergency exception
and thus also goes to the third element. See Powell, 704 S.W.3d at 455. Euliarte’s
allegations were enough to negate application of the emergency exception.
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b. Summary judgment
In response to the City’s summary judgment motion, Euliarte attached
excerpts from Officer Roccaforte’s deposition showing that shortly before the
collision, Roccaforte was sitting at a red light at the Washington Street intersection
a short distance from the HPD station, looking at social media on his phone with his
seatbelt unbuckled. Roccaforte began moving to try to stop the Porsche “based off
of his loud exhaust and unsafe acceleration.” Roccaforte also said he lost visual
contact with the Porsche almost as soon as the chase started, and he did not know
where it was. He said he did not contact dispatch to notify them of his attempted
pursuit. He had his emergency lights on, but the siren was intermittent, “where I
would turn it on and turn it off.”
Euliarte noted that the speed limit on Houston Avenue was 35 miles per hour
but Roccaforte was traveling over 65 miles per hour in attempting to follow the
Porsche. The part of Houston Avenue where Roccaforte was driving was close to
the Reisner Street police station, and Roccaforte testified that he had “very good
idea” of his surroundings. Dart Street connects Houston Avenue at a T intersection
just a short distance from the Houston Avenue underpass, meaning that Roccaforte’s
patrol car may not have been visible to Euliarte when he initiated the right turn. For
his part, Roccaforte admitted that he had “no way of knowing” what the traffic
conditions were on the other side of the underpass. And Euliarte would not have
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otherwise been alerted to Roccaforte’s rapid approach because the patrol car’s siren
was not activated. Roccaforte testified that when he “came out from underneath the
bridge, the crash happened kind of fast.”
Recklessness exists when “the officer ‘knew or should have known’ that her
act posed an unacceptable risk of injury, separating out subjective actual knowledge
from imputed knowledge.” Powell, 704 S.W.3d at 457 (quoting Maspero, 640
S.W.3d at 531). These circumstances raise a fact issue as to whether Roccaforte
knew or should have known that his actions posed a high degree of risk of serious
injury. See Maspero, 640 S.W.3d at 531.
2. Official Immunity
In its second issue, the City argues that the trial court erred in denying its plea
because, even if a fact issue exists as to the emergency exception, it conclusively
proved that Roccaforte was shielded by official immunity.
Official immunity is a common law affirmative defense that aims to “‘insulate
the functioning of government from the harassment of litigation.’” Powell, 704
S.W.3d at 457 (quoting Kassen v. Hatley, 887 S.W.2d 4, 8 (Tex. 1994)). It applies
to the governmental employee, but if the employee is protected by official immunity,
the governmental employer’s immunity is likewise not waived. See Rodriguez, 704
S.W.3d at 468 & n.22; City of Houston v. Moran, No. 01-24-00224-CV, 2025 WL
3545572, at *7 (Tex. App.—Houston [1st Dist.] Dec. 11, 2025, no pet.) (mem. op.).
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To win summary judgment based on official immunity, the governmental
entity must prove that its employee was performing discretionary duties in good faith
and within the scope of the employee’s authority. City of Houston v. Sauls, 690
S.W.3d 60, 69–70 (Tex. 2024). In determining whether an officer acted in good faith,
courts balance the need for immediate police intervention against the risk inherent
in countervailing public-safety concerns. Rodriguez, 704 S.W.3d at 472. In assessing
the need for immediate police intervention, we consider: (1) the seriousness of the
crime to which the officer is responding; (2) the need for the officer’s immediate
presence to prevent injury or loss of life or to apprehend a suspect; and (3) the
availability of any alternative courses of action to achieve a comparable result. Id.
The City relied solely on Roccaforte’s affidavit to support its summary
judgment motion. Summary judgment may be based upon the uncontroverted
testimony of an interested witness “if the evidence is clear, positive and direct,
otherwise credible and free from contradictions and inconsistencies, and could have
been readily controverted.” TEX. R. CIV. P. 166a(c); Trico Techs. Corp. v. Montiel,
949 S.W.2d 308, 310 (Tex. 1997).
In his affidavit, Roccaforte stated that while he was driving on Houston
Avenue with his emergency lights activated, Euliarte’s car “left Dart St. and turned
onto Houston Ave., directly in front” of his patrol car, and that Euliarte “failed to
yield the right of way to [his] emergency vehicle.”
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Euliarte pointed out that Roccaforte did not have enough time to estimate the
Porsche’s speed and was following the Porsche because of a loud and aggressive
acceleration. According to Euliarte, these were Class C offenses at most. In his
deposition, Roccaforte opined that he would most likely have consulted the district
attorney for a charge of “reckless driving in this case, which is a misdemeanor.”
Euliarte noted that HPD General Order 600-04 provides that “an officer shall not
engage in a motor vehicle pursuit when the suspect’s only possible offense includes”
Class C offenses.
Further, Roccaforte testified in his deposition that he immediately lost sight
of the Porsche and never regained sight of it. He acknowledged that an HPD policy
advised officers to “stop chasing” if they lost sight of a suspect vehicle during
pursuit.
Roccaforte’s affidavit does not conclusively establish good faith. The
evidence raises a fact issue as to whether the seriousness of the Porsche driver’s
conduct warranted Roccaforte’s response.
We hold that the trial court did not err in denying the City’s motion for
summary judgment and plea to the jurisdiction.
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Conclusion
We affirm the trial court’s order.
Clint Morgan
Justice
Panel consists of Justices Gunn, Caughey, and Morgan.
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